Section 4.55 of the Environmental Planning and Assessment Act 1979 allows you to apply to modify a development consent that has been granted without the need for you to apply to the council for a new consent. However, a proposed change to an existing development consent can only be regarded as a modification if it involves ‘alteration without radical transformation’. Thus, if the proposed changes would result in a ‘radical transformation’, the changes would need to be dealt with by way of a new development application, rather than by way of a modification application.
To modify a development consent you must be entitled to act on the consent, that is, you must be either the applicant or the owner of the land or a person authorised by the owner to act on the consent.
You will need to modify a development consent where you wish to:
- alter the external envelope of the building (eg where windows or doors are proposed to be moved, or heights are sought to be varied)
- move or change the layout and features of rooms
- alter a specific requirement of a condition of the original consent that has not been met or is otherwise objectionable or unacceptable to you
- intensify the use approved by the consent or change an operational aspect of the development so that it will cause different environmental impacts.
A modification application can still be made in relation to a development that has already been carried out. However, a modification of a development consent, whether in respect of proposed works or works already carried out, operates prospectively and does not render lawful any past illegality in respect of the building.
There is an all-important threshold requirement as respects a modification application, namely, the requirement that the consent authority be satisfied as to a subjective matter before it proceeds further with its merit assessment. The requirement is as follows. If the proposed modification is doing more than simply correcting minor errors, the consent authority must also be ‘satisfied’ that the modified development will be ‘substantially the same development’ as authorised by the original development consent. This means, among other things, that one must compare the proposed modified development against the development as originally approved by the consent authority. The environmental impacts of the proposed modification are relevant to the legal question of whether it is ‘substantially the same development’. This means it is possible for some issues that might be characterised as ‘merit’ issues to also arise in addressing the ‘substantially the same’ test.
You need to keep in mind that, when determining a modification application, the consent authority can impose new conditions as well as amend existing conditions. The limits of the discretion to do so will be defined by the matters raised for consideration by the application. In particular, any new conditions or changes to existing conditions must relate to the specific subject-matter and nature of the modification(s) sought, that is, to ‘the same planning matter’. Applicants have a right of appeal to the court against council’s or the Minister’s decision, including a deemed refusal period of 40 days. However, there is no such appeal in relation to State significant development or where the consent was granted by the Court.
Turnbull Planning has had considerable experience in acting on behalf of clients, large and small, as respects modification applications and is able to provide you with advice as to whether the making of an application for modification of your development consent is feasible and appropriate.